Thompson v James & Anor

An allegation of malice defeating qualified privilege is an allegation of dishonesty. It requires particulars showing matters more consistent with malice than its absence. Carelessness, irrationality, or matters the defendant ought to have known do not, without more, establish malice. Irrelevant material may support an inference of malice only where the circumstances show that the defendant knew it was irrelevant or false, or realised that it had no connection with the relevant duty or interest, yet used the occasion for an improper purpose. The court should be slow to draw that inference. Where the evidence adduced by the claimant could not support a properly directed finding of malice, permission to amend the plea may be refused as futile and the plea struck out.

The claimant brought a defamation claim concerning a letter sent by the first defendant to a third party and subsequently published on a weblog. The defendants relied on truth, qualified privilege and honest comment. The claimant sought permission, during the trial and after closing her case, to amend her Reply to plead malice in answer to qualified privilege.

The proposed case alleged both a dominant improper motive to silence legitimate criticism and reckless indifference or wilful blindness as to the truth or relevance of the publications. The central issue was whether the proposed particulars, considered together with the evidence already adduced, could support a finding of malice.

1. Permission to amend the Reply was refused, and the plea of malice was struck out in its entirety.

2. An allegation of malice is an allegation of dishonesty. Applying Telnikoff v Matusevitch [1991] QB 102, a pleading of malice requires a high degree of particularity. The matters pleaded must be more consistent with malice than with its absence. A claimant cannot maintain a defective plea in the hope that cross-examination will supply the missing case.

3. Malice cannot be inferred merely from matters which the defendant ought to have known, or ought not to have taken into account had he acted rationally. Those matters may suggest carelessness, but carelessness is not malice.

4. Applying Horrocks v Lowe [1975] AC 135, the relevant question concerning allegedly irrelevant material was not whether it was logically irrelevant. The question was whether, in all the circumstances, it could be inferred that the defendant did not believe it to be true or knew that it had nothing to do with the duty or interest supporting qualified privilege, but nevertheless used the occasion for personal spite or another improper motive. The court should be slow to draw that inference.

5. At its highest, the proposed pleading relied on uncertainty about the legal position on filming, assertions that the claimant acted in good faith, allegations that conduct could not rationally amount to harassment, and several non-sequiturs. Those matters could not support a properly directed finding that the first defendant acted dishonestly, was wilfully blind to falsity or irrelevance, or was principally motivated by an improper purpose.

6. Having considered the claimant’s oral evidence and witness statement, and assuming in her favour that her evidence would be accepted, the court found no evidential basis for a case in malice capable of proceeding. Permission to amend would therefore have served no purpose.